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Bergesen v. Yordy

United States District Court, D. Idaho

January 3, 2019

RICHARD ALAN BERGESEN, Petitioner,
v.
ISCI WARDEN YORDY, IDAHO CAPP WARDEN FINN, and the IDAHO PAROLE COMIMSSION DIRECTOR JONES, Respondents.

          MEMORANDUM DECISION AND ORDER

          Honorable Candy W. Dale United States Magistrate Judge

         Pending before the Court in this habeas corpus matter is Respondents' Motion to Dismiss. (Dkt. 32.) Petitioner Richard Bergesen has filed a response and a supplement (Dkts. 37, 39), and Respondent has filed a reply. (Dkt. 38.) All parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 15.)

         The Court takes judicial notice of the record from Petitioner's state court proceedings, lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

         Having carefully reviewed the record and considered the arguments of the parties, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

         REVIEW OF MOTION TO DISMISS

         Petitioner is proceeding on his First Amended Petition for Writ of Habeas Corpus. (Dkt. 25.) Respondents assert that this entire action, which challenges a parole hearing and parole violations, is moot because Petitioner is once again on parole.

         1. Factual and Procedural Background

          Petitioner pleaded guilty to grand theft in a criminal action filed in the Fourth Judicial District Court in Ada County, Idaho. (Dkt. 1 at 2.) The judgment of conviction was entered in June of 2011. Petitioner received a unified sentence of 10 years' incarceration in the custody of the Idaho Department of Correction (IDOC). After serving a portion of his prison sentence, he was released on parole.

         Petitioner was arrested on parole violations on August 30, 2017. He was found guilty of two parole violations, but was granted a diversion in lieu of parole revocation. He was required to complete programming to address his mental health needs. (State's Lodging B-5, p. 5.) Petitioner was cleared for parole again on June 18, 2018, and he remains on parole today.[1] His sentence satisfaction date is December 28, 2020. He will remain in legal custody of the Idaho Department of Correction until that date.

         Petitioner's operative pleading, the First Amended Petition filed on March 5, 2018, challenges various aspects of the 2017 Idaho Commission of Pardons and Parole hearing that resulted in guilty findings on violations of two special conditions of parole. (Dkt. 31.)

         The First Amended Petition raises several constitutional challenges to the parole revocation hearing, including:

1. Violating I.C. § 20-229 and IDAPA Rule 50.01.01.400.07.b.ii;
2. Refusing to place a witness under oath and refusing to audio record the parole ...

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